The recent criminal trial of Bill Cosby made headlines across the world, and many were shocked to see that jurors were “hopelessly deadlocked” and a mistrial was declared.
Cosby was charged with drugging and molesting Andrea Constand in 2004, but Constand is only one of more than 60 women who have come forward in recent years and accused Cosby of drugging or assaulting them — or both.
Constand, however, is the only one who is still able to pursue criminal charges because of statutes of limitation, and she said she’s willing to testify again if and when prosecutors bring the Cosby case back to trial.
Defense attorneys for Cosby might argue that there’s no point in bringing the case back for a costly and time-consuming trial since there’s likely no new evidence to be presented.
But Shan Wu, a former federal prosecutor and highly respected defense attorney in Washington, D.C., told Vice recently that he believes the case will be retried — with the same outcome.
“I think it was a hasty decision by the prosecutor to pronounce instantly that they planned to retry the case,” Wu said. “Any decision to retry the case where the jury is deadlocked is a tough decision to make, and it has to be weighed carefully and evaluated in terms of strategy, evidence, and most importantly, if you’re able to learn what the voting breakdown was on the jury—that’s really critical to know. Because, for example 11-1 in favor of acquittal or 11-1 in favor of conviction obviously are vastly different messages.”
Wu points out that only one other victim was allowed to testify at Cosby’s trial, and based on legal precedents, that number will likely stay the same. If for some reason the judge does allow more women to testify at the next trial, it would be a big talking point if the case were appealed.
Vice asked Wu if he believes the prosecution could offer a plea agreement to Cosby and his attorneys instead of pursuing a retrial. While that is theoretically possible, Wu says, for all practical purposes it is not.
“The prosecutor is stuck with this decision: He campaigned on this case, and I think he’s embarrassed that it was a hung jury,” Wu says. “I don’t think they’re going to offer a significantly better deal. I think they want a felony, they [almost] certainly aren’t going to promise no jail time. So it’s really unlikely that Cosby’s team would take a deal of any kind.”
So, what if prosecutors do bring the case back for a retrial and see the same outcome? Could they go for a third trial? The answer is yes, Wu explains, but it’s extremely rare for the prosecution to seek a third trial after two hung juries.
Wu has been consulted on a variety of criminal justice issues in prominent publications, including The Washington Post, The Huffington Post, Vice and more. If you have questions about high-profile legal matters or need to consult with a criminal defense attorney, contact Wu’s office today.